Newsletter

Wrongfully convicted men speak against death penalty

Faulty evidence

Crammed into a miniscule cell waiting to be put to death, Seth Penalver would sometimes dream that he was a free man again.

Now less than 100 days into that newfound freedom following almost two decades of incarceration, Penalver sometimes goes to sleep worrying that he’ll wake up in prison again, his rightful release from death row an excruciating mirage.

Penalver and fellow death row exoneree Herman Lindsey were in St. Augustine on Monday to share their stories of surviving a sentence of death and to provide tangible examples of the flaws of capital punishment.

The two men from Broward County spoke to the public at the St. Augustine Unitarian Fellowship as part of an anti-death penalty event that featured guests from the ACLU and Floridians for Alternatives to the Death Penalty.

“Should pressure be put on the police officers and the prosecution just to bring in an innocent person?” Penalver said. “I used to believe that can’t happen. I used to be that person until my journey.”

Both Penalver and Lindsey, 40, were convicted in Broward County of murders they didn’t commit. Both were set to be executed before having their convictions overturned on appeal and eventually gaining acquittals.

“I am an example of how our justice system has flaws,” Lindsey said. “I am one of the lucky ones that didn’t get executed and then find out later that I’m innocent.”

The main purpose of this week’s gathering was to concentrate support for abolishing the death penalty in Florida — a daunting task in a place where capital punishment is politically popular.

The Fellowship had petitions to sign, and Natishia Stevens with the ACLU and Mark Elliott, executive director for Floridians for Alternatives to the Death Penalty, presented information about the death penalty.

But the message from Penalver and Lindsey wasn’t aimed at changing the minds of legislators. They said it is the individual citizen of Florida who controls the implementation of the death penalty from the jury room.

“I think that each and every one of you should stand up for what you believe in,” Penalver said. “Because you never know, you may be the one who makes the change.”

Added Lindsey: “Legislators don’t impose the death penalty. It’s the jury that impose the death penalty.”

Faulty evidence

The cases of Penalver and Lindsey are similar in that they were both convicted with the use of some faulty evidence.

However, they had different experiences in getting to where they are now.

Penalver was held in jail or prison for 18 years while either awaiting trial, execution or appeal. He was charged with murder in 1994.

It took two trials to convict him (the first was a mistrial). He was found guilty of three counts first-degree murder and sentenced to death in 1998.

Penalver was actually sent to death row at Florida State Prison in Starke in 2000 and stayed until 2006 when he won an appeal for a new trial.

Although the murder was captured by a surveillance camera, the person who was originally identified as Penalver was wearing a baseball cap and sunglasses. Co-defendant Pablo Ibar was also identified in the video and is currently on death row.

Because of this and other evidence, the Florida Supreme Court overturned the guilty verdict, saying in its opinion “there was no physical evidence presented that tied Penalver to the crime.”

He was acquitted at his third trial after 11 days of deliberation. Penalver finally regained his freedom on Dec. 21.

“I actually thought that I was dreaming,” Penalver said. “I had to rub my head to actually feel what was going on.

“I had many a times sitting in death row in that jail where I dreamt I was free. And then I’d roll over and hit my head, hit my arm on that wall and I’d wake up. Still today sometimes I don’t believe it’s real. I’m waiting to wake up still back in that jail.”

Court orders acquittal

Lindsey’s experience death row was different. He was already incarcerated for a drug offense when he was also implicated in a 1994 murder at Big Dollar Pawn Shop in South Florida.

He was placed at the scene of the crime days earlier because he sold his Sega game system for cash. But there was nothing to tie him directly to the crime.

Nonetheless, Lindsey was convicted in 2006 and eventually sent to death row at Union Correctional Institution at Raiford. Three years later, he was released when the Florida Supreme Court overturned his conviction.

Lindsey’s case did not go back to trial as Penalver’s case did because in the court’s opinion, “We find the evidence presented at trial legally insufficient to support the convictions, we reverse and direct that a judgment of acquittal be entered.”

Even with acquittals, the lives of Penalver and Lindsey have been damaged beyond repair. They have almost no employment prospects because of the original murder convictions.

And despite being falsely imprisoned, they are not entitled to any compensation from the state because they had prior felony convictions.

They have fought off the temptation to be bitter.

“What Florida did to me, I forgive them,” Lindsey said.

Lindsey is recently re-married and working on an undergraduate degree in paralegal studies.

“I have to live my life and put all of that behind me,” he said. “If you dwell on the past, you’re going to stay in the past.”

Life behind bars

Just three months removed from the penal system, Penalver is still trying to find his path. He has spent almost all of his adult life behind bars, has little work experience and has yet to obtain his high school diploma.

One of the few things he has decided is that he isn’t going to waste his second chance at life.

“I had two ways to live my life,” he said. “Should I be angry the rest of my life? Or should I enjoy the rest of the time I got left?”

Whatever else they do with the rest of their lives, Penalver and Lindsey are determined to help end capital punishment in Florida.

No one is arguing that every person sentenced to death is innocent. It’s just that the potential for an irreversible mistake is too great.

According to information provided by the ACLU, Penalver is the 24th condemned person in Florida to be exonerated since the death penalty was re-instituted in 1979. Lindsey is No. 23.

On Monday, Lindsey urged people to think about the death penalty and talk to others about it. He asked them to use the power they have to stop executions because he and Penalver could have been killed for nothing. They don’t want it to happen to someone else.

“People don’t really know what’s really going on,” Lindsey said. “You have so much faith in the system … you believe that the system is giving out justice.

“Two people could have been injected and killed and then proven innocent later. Now, do we want that on our hands? Nobody want that on their hands.”

They would like to see such punishment options be removed from the hands of Floridians.

“If we can prevent death from being carried out in the state of Florida … it’s bigger than me,” Penalver said. “It’s not just about me and Herman; it’s about ending the death penalty here in Florida.

“If there’s one person out of the 400-some odd (on death row), it’s broken. People make mistakes. Everybody makes mistakes.”

****

Death row facts

Death row and death watch cells: A death row cell is 6 by 9 by 9.5 feet high. Florida State Prison also has death watch cells to incarcerate inmates awaiting execution after the governor signs a death warrant for them. A death watch cell is 12 by 7 by 8.5 feet high.

Daily life: Inmates may receive mail every day except holidays and weekends. They may have snacks, radios and 13-inch televisions in their cells. Beginning Oct. 1, 2011, inmates were prohibited from using any form of tobacco in prison, including on death row. They do not have cable television or air-conditioning and they are not allowed to be with each other in a common room. Inmates receive a shower every other day.

Execution stats: The average length of stay on death row prior to execution is 13.22 years. The average number of years between offense and execution is 14.12 years.

There were three executions in 2012 and 74 since the death penalty was re-instituted in 1976.

There are 405 inmates on death row.

There have been 24 people in Florida exonerated after being sentenced to death, according to the ACLU